In United States v. Oliver, No. 17-15565 (June 18, 2020) (Wilson, Jill Pryor, Tallman (CA9)), the panel reversed itself following a government rehearing petition and held that the defendant’s Georgia offense for making terrorist threats was a violent felony under the elements clause.
The panel had originally held that the statute was indivisible (and therefore categorically overbroad) because state law was unclear. This time, however, the Court concluded that the defendant’s record of conviction—specifically, the indictment—made clear that the statute was divisible because it charged only one of the ways to commit the offense, suggesting that the statutory alternatives were elements rather than means. And the Court concluded that alternative element in question—threatening to commit a crime of violent with the purpose of terrorizing another—satisfied the elements clause. No case law supported the defendant’s argument that this particular offense encompassed threats to property as opposed to persons.
Judge Tallman concurred, opining that Georgia law made clear that the statute was divisible.
